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Mandatory Minimums
United States v. Wynaar, No. 09-CR-656 (JBW), 2010 WL 3718912 (E.D.N.Y. Sept. 13, 2010)
Wynaar was convicted at trial of conspiring to import cocaine, conspiring to attempt to import cocaine, and conspiracy to attempt to possess cocaine, for which he faced an advisory Guidelines range of imprisonment of between 78 and 97 months. The court, however, sentenced him to 60 months imprisonment. Why?
The offenses of conviction were serious. Defendant was convicted by a jury of conspiring and attempting to import large, distribution quantities of cocaine into the United States from Suriname. He has exhibited on many occasions a disregard for the criminal law. A significant period of incarceration is appropriate for purposes of achieving specific deterrence. Defendant has, however, an excellent work history and a large, supportive family. The high statutory minimum applicable in this case, plus the maximum term of supervised release, will adequately serve the purposes of sentencing.
Could these same grounds for a non-Guidelines sentence also apply in, say, a white-collar setting?
United States v. Ballard, No. 09-0978-cr (2d Cir. Aug. 4, 2010) (found here) Remember Zachary Ballard? Judge Rakoff imposed a 601 month sentence. But he had some sharp words for the mandatory minimum sentencing schemes that caused him to be required to impose that sentence. Well, Ballard appealed. And the Second Circuit affirmed. In doing so, though, it expressed some sympathy for Ballard's plight: The district court was clearly conflicted by the sentence it gave to Ballard. The court opened its opinion and order denying Ballard's motion for resentencing by stating, "The distorting effects of mandatory minimum sentences are never more evident than in the case of defendant Zachary Ballard," United States v. Ballard, 599 F. Supp. 2d 539, 539 (S.D.N.Y. 2009), and closed by stating, "When the letter of the law so far departs from justice as to become the instrument of brutality, common sense should call a halt," id. at 543. We are not unsympathetic to the concerns raised below. That said, we see no error in the sentence as it complied precisely with Title 18 and the law of this circuit.
United States v. Hernandez, No. 09-CR-703 (JBW), 2010
WL
2522417 (E.D.N.Y. May 28, 2010) Hernandez pled guilty to one count of having received images captured in a computer screenshot of child pornography, for
which he faced an
advisory Guidelines range of imprisonment of between 97 and 121 months.
He was sentenced to a 5 years imprisonment (the mandatory minimum). Why? A sentence of 5 years' imprisonment is unnecessarily cruel in the circumstances. The sentence overstates the seriousness of the crime; it is more than necessary to serve the purpose of sentencing. Prison will only harm the defendant and will do nothing to protect society. The defendant requires treatment and supervision outside of prison. . . . . The case constitutes a tragedy resulting from a mandatory minimum and the decision of the U.S. Attorney to charge the defendant for receipt of child pornography, rather than under a more apt statute that would permit treatment outside of prison, the development of a useful life for the defendant, and huge cost savings for taxpayers. In light of the statutory minimum, there is nothing this court can do to ease the injustice of the sentence imposed.
This decision reminds me of Judge Gleeson's decision in United States v. Vasquez, in which he criticized not only the mandatory minimum sentencing scheme but also the U.S. Attorney's charging decision.
I've received the following report from Paula Notari ([email protected]) on a recent sentencing she handled before the Honorable Dora L. Irizarry in the United States District Court for the Eastern District of New York in United States v. Dunbar, No. 08-CR-187 (E.D.N.Y. April 21, 2010). In sum and notwithstanding pending legislation to change the 100:1 crack/powder ratio to 20:1, some judges continue to apply a 1:1 ratio. Here's the report: Dunbar was charged in a crack cocaine conspiracy, and pled guilty to a five-year mandatory minimum count. Based in part on a prior New York Youthful Offender adjudication, Judge Irizarry classified Dunbar as a Career Offender, and determined that his advisory Guidelines range of imprisonment was 188 to 235 months. Judge Irizarry, however, sentenced Dunbar to 60 months imprisonment based on a 1:1 crack/powder ration. More particularly, applying this ration (and rejecting the Probation Department's application of a 20:1 ratio), Judge Irizarry concluded that Dunbar's advisory Guidelines range was 30 to 37 months, but was obliged to sentence him to the minimum mandatory five-year term of imprisonment.
United States v. Vasquez, No. 09-CR-259 (JG), 2010 WL 1257359 (E.D.N.Y. March 30, 2010) When people think about miscarriages of justice, they generally think big, especially in this era of DNA exonerations, in which wholly innocent people have been released from jail in significant numbers after long periods in prison. As disturbing as those case are, the truth is that most of the time miscarriages of justice occur in small doses, in cases involving guilty defendants. This makes them easier to overlook. But when they are multiplied by the thousands of cases in which they occur, they have a greater impact on our criminal justice system than the cases you read about in the newspapers or hear about on 60 minutes. This case is a good example.
Wow. That's a helluva an opening paragraph for a sentencing opinion. Let's delve deeply into the case to see what precipitated the Judge Gleeson to write it. As the reader will see, Judge Gleeson has some strong opinions concerning mandatory minimum sentences and the means by which they cast too broad a net. And he has a few choice words for the prosecutors who use them. Background Concerning the Defendant -- Vasquez, age 36 was born in Puerto Rico, the youngest of 12 children. He
had no relationship with his father, who died when he was four or five years
old. He did, however, have a relationship with one of his many older brothers
that was especially damaging. From the age of seven, Vasquez was sexually abused
repeatedly by this brother, and as a result he struggled with depression
his entire life.
Vasquez dropped out of high school in the
ninth grade. By his early twenties, he had acquired some expertise in fixing
cars and trucks. He had also acquired a cocaine addiction. In approximately
1994, he commenced a turbulent ten-year relationship with Ingrid Melendez,
with whom he had three children. During that period, he suffered from multiple
bouts of depression. When the relationship ended in 2004 due to Melendez's
infidelity, Vasquez attempted suicide. He spent two months in Bellevue
Hospital, where he received medications for depression and bi-polar disorder. Other than the drug trafficking that got him
convicted in this case (described below) Vasquez's entire criminal
history stems from his relationship with Melendez. In December of 2004, after
his release from Bellevue, she refused to let him see their children. He
reacted by menacing her with a knife in front
of the children. Though he was given a conditional discharge, he failed to
abide by the conditions; six months later he violated an order of protection by
threatening to kill Melendez. This conduct got Vasquez 60 days in jail on the
earlier menacing case and 60 more for contemptuously violating the order of
protection. A year later, in June of 2006, Vasquez once again showed up at
Melendez's home without permission. He was convicted of harassment and given
another conditional discharge. In 2005, Vasquez met Maritza Caraballo, a bank
teller. They lived together and enjoyed a stable relationship until March 25,
2009, when Vasquez was arrested in this case. They have a three-year-old
daughter, and Carabello's eight-year-old daughter from a prior relationship
also lives with them. Vasquez worked continuously during that period, first as
an auto mechanic, then, beginning in 2007, as a construction supervisor.
Vasquez and Caraballo are engaged to be married in June. Melendez continued to deny Vasquez access to
their three children. Caraballo reports that this produced an extremely
stressful situation for Vasquez, who was complying with his court-ordered child
support obligations to those children. Though Vasquez had stopped using drugs
after he met and began living with Caraballo, under the mounting stress of his
situation with Melendez and their children, he finally relapsed in 2008, when
he began using cocaine again. That development laid the groundwork for his
involvement in his offense of conviction. To support his expensive cocaine
habit, Vasquez went to work in approximately September of 2008 for one of his
older brothers, Jose Angel Vasquez, a drug dealer and his co-defendant in this
case. Unfortunately for both of them, the government was intercepting the
telephone calls of members of Jose Vasquez's business. Those calls identified
the defendant as a minor participant in his brother's organization. More
specifically, "[t]he government's investigation revealed that, for the
most part, the defendant was a street-level distributor for his brother's
organization, with only occasional and minor participation in the
organization's broader activities." In the six to eight months
he was involved in the business to support his habit, Vasquez personally assisted
in the distribution of 300 grams of heroin. He was aware of the distribution of
350 additional grams by others, so he was responsible under the Guidelines for 650 grams.
After his arrest, Vasquez tried to cooperate
with the government. He provided information about two individuals, but it
could not be corroborated. As the prosecutor stated when Vasquez first appeared
for sentencing on December 29, if he "had more information, he would have
received a" substantial assistance motion.
The Charge -- According to Judge Gleeson, the Government basically overcharged Vasquez. Specifically:
The
government had it within its power to charge Vasquez with a standard drug trafficking charge, which carries a maximum
sentence of 20 years. Instead, it included him in a conspiracy charge with his
brother and three others and cited to a sentence-enhancing provision that
carries a maximum of life in prison and a mandatory minimum of ten years upon
conviction. During plea negotiations, the government refused to drop that
charge unless Vasquez pled guilty to a lesser-included sentencing enhancement
that carried a maximum of 40 years and a mandatory minimum of five years.
The Effect of the Drug Sentencing Laws on Vasquez -- According to Judge Gleeson, the drug laws (on which he provides excellent background) have a dramatic impact on Vasquez. As described by the Court:
The second result of this regime is placed in
clear relief by this case. I f they want to, prosecutors can decide that
street-level defendants like Vasquez--the low-hanging fruit for law enforcement--must
receive the harsh sentences that Congress intended for kingpins and managers,
no matter how many other factors weigh in
favor of less severe sentences. The government concedes, as it must, that Vasquez
played a minor role in his brother's modest drug operation, not the
mid-level managerial role the five-year mandatory sentence was enacted to
punish. Indeed, the government argues that Vasquez's guidelines computation
includes a two-level downward adjustment because of his mitigating role
in the offense. See U.S. Sentencing Guidelines Manual 3B1.2(5). Yet, by the simple act of invoking the sentence-enhancing
provision of the statute, the government has dictated the imposition of the
severe sentence intended only for those with an aggravating role.
What's a Judge to Do? At sentencing, the Court took an activist role, expressing displeasure with the Government's position and asking the Government to reconsider that position. Ultimately, the Government refused, leading to a none-to-happy Judge Gleeson.
Specifically: When
the case was first called for sentencing in December, I pointed out the
obvious: the five-year mandatory sentence in this case would be unjust. The
prosecutor agreed, and welcomed my direction that she go back to the United
States Attorney with a request from the Court that he withdraw the aspect of
the charge that required the imposition of the five-year minimum. She asked for
a couple of months to make the case that the sentence enhancement should be
abandoned. On March 5, 2010, the prosecutor appeared
again, shadowed by a supervisor. She reported that the United States Attorney
would not relent. She offered two reasons. The first was that I might have
failed to focus on the fact that Vasquez had "received a bump down,"
meaning he was allowed to plead to the five-year mandatory minimum rather than
to the ten-year mandatory minimum that he,
his brother, and three other co-defendants were originally charged with. I think this means that Vasquez should be grateful the
government did not insist on a ten-year minimum sentence based on additional
quantities of cocaine it concedes he knew nothing about and could not be held
responsible for under the guidelines, presumably on the theory that
other members of the same conspiracy dealt those quantities. I suppose there is some consolation
in the fact that the government did not pursue that absurd course, which would
have produced an even more egregious injustice if Vasquez had been convicted.
But that hardly explains, let alone justifies, the government's insistence on
the injustice at hand. Second, the prosecutor suggested that I had
failed to "focus" on the seriousness of Vasquez's crimes against his
ex-wife, Melendez. Implicit in that assertion is the
contention that even if Vasquez does not deserve the five-year minimum because
he was not a mid-level manager of a drug enterprise, he deserves it because of
his past crimes. This rings especially
hollow. Those past crimes have been front and center at all times, not only
because they render Vasquez ineligible for safety valve relief from the minimum
sentence, but also because there was litigation over how many
criminal history points they warranted. When Vasquez first appeared for
sentence on December 29, both of these subjects were discussed. And when the prosecutor took the position that the
criminal history points produced by Vasquez's past crimes overstated the
gravity of those crimes, warranting a downward departure, it did not appear she
had failed to focus on their seriousness either. In any
event, I certainly had not.
I recognize that the United States Attorney is
not required to explain to judges the reasons for decisions like this one, and
for that reason I did not ask for them. But the ones that were volunteered do
not withstand the slightest scrutiny.
The Sentence and the Explanation for the Sentence -- Judge Gleeson was none-too-pleased with having to impose a 5 year mandatory minimum sentence. Indeed, he viewed it as one of those "small injustices" that he described in the opening paragraph of his sentencing opinion. As the Court explained (I've added some paragraph breaks for ease of reading):
As a result of the decision to insist on the five-year mandatory minimum, there
was no judging going on at Vasquez's sentencing. Though in theory I could have
considered a sentence of greater than 60 months, even the prosecutor recognized
how ludicrous that would be, and asked for a 60-month sentence. But the
prosecutor's refusal to permit consideration of a lesser sentence ended the
matter, rendering irrelevant all the other factors that should have been
considered to arrive at a just sentence.
The defendant's difficult childhood and lifelong struggle with
mental illness were out of bounds, as were the circumstances giving rise to his
minor role in his brother's drug business (i.e., it was to support an
addiction, not to become a narcotics entrepreneur with a proprietary stake in
the drugs), the fact that he tried to cooperate but was not involved enough in
the drug trade to be of assistance, the effect of his incarceration on his
three-year-old daughter and the eight-year-old child of Caraballo he is raising
as his own, the fact that he has been a good father to them for nearly five
years, the fact that his prior convictions all arose out of his ex-wife's
refusal to permit him to see their three children.
Sentencing is not a science,
and I don't pretend to be better than anyone else at assimilating these and the
numerous other factors, both aggravating and mitigating, that legitimately bear
on an appropriate sentence. But I try my best to do just that, and by doing so
to do justice for the individual before me and for our community. In this case,
those efforts would have resulted in a prison term of 24 months, followed by a
five-year period of supervision with conditions including both other forms of
punishment (home detention and community service) and efforts to assist Vasquez
with the mental health, substance abuse, and anger management problems that
have plagued him, in some respects for his entire life. If he had failed to
avail himself of those efforts, or if, for example, he intentionally had
contact with Melendez without the prior authorization of his supervising
probation officer, he would have gone back
to jail on this case.
The mandatory minimum sentence in this case
supplanted any effort to do justice, leaving in its place the heavy wooden club
that was explicitly meant only for mid-level managers of drug operations. The
absence of fit between the crude method of punishment and the particular set of
circumstances before me was conspicuous; when I imposed sentence on the weak
and sobbing Vasquez on March 5, everyone present, including the prosecutor,
could feel the injustice.
Conclusion -- Judge Gleeson's words say it all:
In sum, though I am obligated by law to
provide a statement of "reasons" for each sentence I impose, in this case there was but one: I was forced by a law
that should not have been invoked to impose a five-year prison term.
United States v. Feaster, No. 07-CR-874 (JBW), 2009 WL 2757157 (E.D.N.Y. Aug. 26, 2009) The district court sentenced Feaster to 120 months (10 years) imprisonment (the mandatory minimum for his narcotics offense), but was clearly not happy about it. Specifically, the district court was not happy with certain Second Circuit rulings that "any criminal history category adjustment" -- including adjustments for relatively minor offenses that overstate the seriousness of a defendant's criminal history -- "otherwise authorized may not be considered in the context of safety valve eligibility." And it wasn't shy in letting its views be known: The
inequity flowing from this rather obscure-and substantively
dubious-guidelines criterion for safety valve eligibility may, as the
Commission's report states, be infrequent. But it is no less real and
no less unfair for the few ill-fated defendants facing what can only be
considered a “pothole on the road to justice.” It also violates the
fundamental statutory requirement to consider in sentencing “the need
to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct.” . . . To take away
years of a young man's life based on bureaucratic rigidity under the
banner of “criminal justice” is an intolerable cruelty.
United States v. Ballard, 599 F. Supp. 2d 539 (S.D.N.Y. March 2, 2009) The distorting effects of mandatory minimum sentences are never more evident than in the case of defendant Zachary Ballard. Although his co-defendant, Anthony Steele, by entering into a plea bargain excluding mandatory minimums, obtained a sentence of 168 months in prison, Ballard, by exercising his constitutional right to go to trial, faced mandatory minimums upon conviction that required this Court, on February 8, 2009 to sentence him to a term of imprisonment of 601 months, i.e., just over 50 years. The Government, moreover, believing that the law requires the Court to sentence Ballard to approximately 167 months more -- i.e., to approximately 64 years in prison -- now moves, pursuant to Fed.R.Crim.P. 35(a), to correct defendant's sentence for "clear error."
Given that the law so favors consecutive mandatory minimums, the motion is not frivolous; but in the end, the Court denies the motion.
That's how Judge Rakoff begins his critique of mandatory minimum sentencing -- similar to his outstanding work in United States v. Adelson concerning the loss table and large-scale financial frauds (detailed here).
By way of background, Ballard was convicted on seven counts relating to a series of armed robberies that he and his co-defendant executed pursuant to a conspiratorial plan. Several of the gun counts of conviction carried mandatory minimum consective sentences of 7 years, 25 years and 25 years. Several of the non-gun counts of conviction had no mandatory minimums, but did have advisory Guidelines ranges. The Government took the position that "the Court should impose on the non-gun counts a sentence at least at the bottom of the Guidelines range (i.e., 7 years), plus consecutive sentences on each of the gun counts (i.e., 7 years plus 25 years plus another 25 years for a total of 64 years in prison)." When Ballard initially appeared for sentencing, the Court "expressed reservations about imposing a 64-year sentence for a string of robberies that, although by any account serious and deserving of a significant sentence, did not result in any bodily injury or death." The Court "also expressed its belief that a sentence of 'somewhere between 25 and 35 years, a very substantial sentence under any conceivable analysis,' would be more than sufficient" to satisfy 18 U.S.C. § 3553(a) The Government apparently agreed because it made Ballard an offer (sort-of at the Court's suggestion) -- We won't object to a 39 year sentence if you promise not to appeal the sentence. Over his counsel's recommendation, however, Ballard "once again asserting his full panoply of rights, rejected the sentence bargain." The Court ultimately felt obliged to sentence Ballard to 60 years. The Government then filed its Rule 35 motion, seeking the additional time that it felt the relevant statutes and caselaw (as detailed in the opinion) required the Court to impose. The Court rejected the Government's argument, distinguishing the caselaw (United States v. Chavez, 549 F.3d 119 (2d Cir. 2008)). And then it courageously laid out its conclusion -- which I think speaks for itself concerning the Court's views as to the mandatory minimum sentences with which it had to contend and the Government's position concerning their applicability: If the Government, in the exercise of its discretion, believes that vindication of its view of the law requires it to appeal the 50-year sentence imposed in this case so that even more time can be imposed on a defendant who clearly faces a near-life sentence, so be it. This Court, in the exercise of its discretion under Rule 35(a), declines to be a party to such an unconscionable result. When the letter of the law so far departs from justice as to become the instrument of brutality, common sense should call a halt.
United States v. Smith, No. 08-CR-545 (JBW), 2009 WL 971682 (E.D.N.Y. April 2, 2009) How do you get from a five year mandatory minimum sentence and an advisory Guidelines range of 37 to 46 months down to a sentence of only a year and a day? The safety valve, of course. Also, it doesn't hurt that you've got a nice sentencing story and a couple of bucks to forfeit: The defendant is intelligent and thoughtful, and he has taken responsibility for his criminal acts. He has a loving family that will support him in leading a lawful life moving forward. Given the defendant's long history of involvement with drugs as well as his past problems with alcohol and gambling, treatment will be critical in his rehabilitation; he has expressed his intent to take full advantage of those programs. He agreed to forfeit all the drug proceeds -- nearly a quarter of a million dollars -- recovered from him by law enforcement at the time of his arrest, a factor in the defendant's favor for purposes of sentencing.
United States v. Samuels, No. S1-08-Cr.-08-03 (RWS), 2009 WL 875320 (S.D.N.Y. April 2, 2009) Ah . . . the power that the safety valve can sometimes yield. Samuels pled guilty to conspiring to distribute and possess with intent to distribute 50 grams or more of crack. For that offense, she faced a 10 year mandatory minimum sentence (even though her Guidelines indicated 70 to 87 months imprisonment). Samuels, however, fulfilled the requirements of 18 U.S.C. § 3553(f), and was sentenced to time served (15 months). Here's the justification for the sentence as explained by the Court: Title 18 U.S.C. § 3553(a)(1) directs the Court to consider "the history and characteristics of the defendant" when determining the appropriate sentence. As noted by the Probation Officer in his report, Samuels was raised under poor economic circumstances with an abusive father addicted to crack. She dropped out of school in order to support her family, and she has stated that her sale of narcotics was for economic reasons. Her abuse of crack was never extensive, and she reportedly stopped abusing and selling crack in November 2007 on her own initiative, two months prior to her arrest. The probation officer noted in the PSR that her abuse of drugs was a source of embarrassment to her and kept from her family, and Samuels has stated that she has no desire to ever use drugs again.
Samuels has acknowledged responsibility for her actions, stated that she has learned a valuable lesson from it, and seeks to move forward to become a productive member of society. Her 15 months of incarceration reflect the positive change that the Defendant seeks to make in her life. She has successfully completed a typing class, undergone Inmate Companion Training, is pursuing classes in order to earn a GED degree, and leads a trusted cleaning crew that is permitted access to nearly all parts of the MDC. She has never been written up for a disciplinary infraction while in custody. Upon her return to society, Samuels appears well positioned to complete her education and pursue gainful employment in support of her family.
Because a term of incarceration beyond time already served would not serve the goals of the penal system with respect to this Defendant, a downward departure from the Guidelines is appropriate.
United States v. Martinucci, Docket No. 08-0104-cr (2d Cir. April 8, 2009) (found here) Martinucci was convicted of some pretty serious crimes (child pornography and sexual abuse and the like). His offense level under the Guidelines was 33, which indicated a sentencing range of 135-168 months imprisonment. But he also faced a mandatory minimum sentence of 180 months. The court, however, imposed a 300 month sentence -- which the Second Circuit affirmed. More specifically, the Second Circuit found that: the district court conscientiously reviewed the pertinent sentencing factors specified by § 3553(a) and concluded, considering the seriousness of the offense and the great harm inflicted on the victim, the defendant's recidivism, and his lack of remorse, that the need for punishment, for deterrence of others, and for protection of society jusitified the lengthy imprisonment term. The court did not exceed its sentencing discretion.
Nothing extraordinary about the decision, other than to note that such wide variances from the Guidelines are not necessarily viewed skeptically by the Second Circuit when a good record has been made by the district court.
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